Not so very different after all

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They told us that it would be so different. After the chaos and confusion of a series of Tory PMs who all seemed to think, to a greater or lesser degree, that compliance with the law was optional (especially in the case of Johnson) the new Labour PM was a completely different animal. A man with a long and honourable background as a human rights lawyer, a man for whom the rule of law was part of the very essence of his being. The promise didn’t age well.

When it came to denying power, water and food to the people of Gaza, his initial response was that Israel had a right to self-defence, and he swatted away any suggestions that that right did not extend to mass killings of non-combatants, including children. Perhaps it stems from that other attribute of an experienced lawyer, obliged by the rules of his profession to take on either side in any case, and find the way of prosecuting or defending which gives his client the best chance of winning. From that perspective, whether or not what Israel is doing in Gaza amounts to genocide or not is a matter of opinion which can only be settled by a court case; whether bombing of hospitals was deliberate or not (and therefore whether it amounts to a war crime) is just an allegation until proven at a trial which is unlikely to happen any time soon. For a good lawyer, there is almost always some wiggle room in law, even if not in morality.

When we come to the bombing of nuclear installations in Iran, however, it’s difficult to see how any reputable lawyer could find a way to argue the case in favour of Trump and the US. The prohibition on attacking nuclear installations is there, in clear terms, and the miscreants have actively boasted that the targeting was entirely deliberate. There simply is no wiggle room; it’s a war crime, pure and simple. The government’s attempt to avoid answering the question as to whether they believe it to be a criminal act or not is shameful. The statements by Sir Warmonger after the event, claiming that the outcome (preventing Iran from developing a nuclear weapon, even though there was no real evidence that they were trying to do so) is a good thing is not so much a legal argument as an ‘end-justifies-the-means’ argument.

Even if it were true that preventing one insane man from joining the club of other insane men who already possess such weapons is such a good outcome that it justifies a blatant breach of international law, we don’t know – and won’t for some time to come – what the real outcome of Trump’s decision is. The destruction of the bombed facilities, even if it’s as complete as is being claimed (and the history of previous military adventures suggests that might turn out to be a dubious claim at best) is only one, short-term outcome. Nobody knows what comes next, but the idea that a single military attack can be considered and judged in isolation from both what went before and what will come after is just another form of madness.

It seems that even a long career upholding the rule of law doesn’t prevent a lawyer who transitions into politics abandoning that commitment in pursuit of the simplistic goal of not upsetting His Orangeness. The rule of law turns out to be considered optional after all.

Getting the big calls right

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The PM’s decision yesterday to cancel his attendance and speech at a conference of his own MPs and activists in Doncaster in order to visit Kyiv has not gone down well with those he was due to address. I’m not at all sure that the attendees have missed much, but I can certainly understand why Johnson might think that a city under regular attack by bombs and rockets is currently a friendlier and safer place for him than a Conservative conference. One of his northern MPs said visiting Kyiv wasn’t much of an excuse because the PM “could have gone there any time”, but that perhaps misses the importance of the timing from Johnson’s perspective. The previous day, the EU’s ‘big three’ (the leaders of the three biggest economies in the EU: Germany, France, and Italy) visited Kyiv. Pre-Brexit, the ‘big three’ would either have included the UK rather than Italy or else would have been expanded to become the ‘big four’. Either way, from Johnson’s perspective, he was in danger of being sidelined – and it would be a huge mistake to think that anything Johnson does would have been motivated by anything other than meeting Johnson’s personal need for attention and recognition.

It also helps him to turn the news coverage away from his own misdemeanours and crimes to one of the issues on which both he and his supporters are regularly claiming that ‘he got the big calls right’. It’s a claim which, notwithstanding the natural outpouring of sympathy for a European country subjected to a vicious, illegal, and unprovoked attack by a neighbour, deserves to be analysed rather more carefully than it has been.

There are, ultimately, only two ways in which wars come to an end: either one side wins a clear victory, or else a ceasefire is agreed, followed by negotiations (which may take years or even decades) aimed at signing a formal treaty. Johnson’s ‘big call’ (and that of much of what is called ‘the west’ as well) seems to be to encourage the Ukrainians to continue fighting in pursuit of complete victory whilst providing them with enough armaments only to slow the Russian advance, and denying them the key weapons which would make a victory on the battlefield possible. That is backed up by the painfully slow incremental imposition of sanctions which seem more aimed at hurting selected individuals than at rapidly destroying or undermining Russia’s ability to wage war. It’s a recipe for a lengthy war of attrition in which many more, soldiers and civilians alike, will be killed or wounded until, eventually, the losses become so great that one side or the other sues for peace. Putin is probably assuming that ‘the west’ will eventually tire of the cost and impact of underwriting Ukraine’s war effort: he may well be right; the issue is already dropping down the news schedules, to be at least partially replaced by concerns over the so-called cost of living crisis which is itself partly driven by the costs of the war. Unless ‘western’ policy (or Russian policy) changes, it’s fairly obvious which side will end up making the concessions  – the only question is over how much death and destruction it will take to get to that point. Any conclusion about whether Johnson has got this particular ‘big call’ right ought properly to be based on the extent to which the likely outcome is acceptable, and rather less on the publicity and rhetoric of the man himself.

It's a gloomy assessment, which has nothing to do with justice or fairness. There is, however, nothing particularly defeatist about asking which is the most important – the location of lines drawn on a map, or the lives of those living on either side of those lines? Stopping wars after they have started is a major challenge, but the bigger one is preventing them from starting in the first place, and investing an increasing proportion of the world’s resources in armaments doesn’t obviously seem to be the best way of promoting peace. What humanity needs is a rule-based international order accepted by all under which disputes can be resolved peacefully. One of the few certainties is that it’s too late to establish one of those once a war has started. It certainly does not help, though, when the leader of a rogue state like the UK spends so much time and effort trashing such order as does exist. Expecting others to abide by the rules in such circumstances is wholly unrealistic. ‘Getting the big calls right’ is about more than generating a few headlines which can be used as dead cats. And it’s a lot harder. Especially so for a lazy narcissist like Johnson.

Legal innovation at Number 10

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The PM’s (presumably soon to be ex-) ethics advisor has, not unreasonably, suggested that receiving a fixed penalty notice for breaking the law might, in itself, be considered to constitute a breach of the overarching duty on ministers to comply with the law. It’s hardly a controversial conclusion to draw. In response, the PM has responded to the effect that it doesn’t really count as a breach of the law or of his duty to abide by the law because there was “no intent to break the law”. It’s a novel legal idea, but somehow, I don’t see ‘I did it m’lud, but I never intended to’ working as a defence in court, nor can I believe that ‘lack of intent’ will be accepted as mitigation in the case of other types of fixed penalty notices, such as parking fines or speeding fines. But when you’re world king, who needs a pesky ethics advisor anyway? Unless it’s the sort who brings karaoke machines to unlawful gatherings, of course.

It's not the only legal innovation to emanate from the current government. One of the main justifications for the policy of sending migrants to Rwanda is that it will break the business model of the people smuggling gangs who are currently preying on the vulnerable and desperate. Some naïve folk, like myself, might think that it would be better to punish the gangs themselves rather than those on whom they prey, but identifying and catching them has proven to be beyond the capacity of those responsible for enforcing the law, so they’ll punish the victims instead. This will, according to them, act as a deterrent to anyone else tempted to pay criminals to gain entry to the UK. If punishing the perpetrators is too hard, let’s simply punish their victims instead.

I hesitate to put ideas into their heads, but perhaps these innovations could be extended to other fields. If catching burglars is too much like hard work, why not fine the people who’ve been burgled? It wouldn’t stop burglary, but it’s likely to deter people from wasting police time by reporting it. It would do wonders for the crime statistics. Just as long as the victims of burglary don’t try to wriggle out of it by claiming that they had ‘no intent’ to be burgled.

Upholding their principles

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Is the Conservative and Unionist Party, to give it its full title, a Marxist organisation? It was, after all, Marx (albeit Groucho rather than Karl) who came up with the line “Those are my principles, and if you don't like them... well, I have others”. Perhaps that’s unfair, given that it’s more likely that most of them wouldn’t recognise a principle if it bit them, an attitude personified by their current leader. Apparently the ‘principle’ about which a number of them were getting rather exercised just a few days ago (that the UK government should not break international law) wasn’t quite what it seemed to be. According to the agreement reached with a group who were entirely unjustly labelled as ‘rebels’ (a more accurate term might be ‘patsies’), it turns out that the ‘principle’ is merely that a majority of MPs should be whipped into voting to break the law before it happens rather than waiting to be whipped into approving it after the event. And in exchange for this ‘concession’ from the government (which ensures that the MPs are complicit in committing the crime rather than merely agreeing to ignore it after the event), they have agreed to change the law first to make sure that the Government’s decision can’t subsequently be challenged in domestic courts.

As ‘negotiations’ go, it reminds me rather of the trade unionist who had to tell his members that he hadn’t been able to get them a pay rise and had in fact had been forced to accept a pay cut on their behalf. The good news, though, was that he’d got it backdated. In this case, instead of preventing the government from breaking international law, the useful idiots (as Lenin might have called them) have agreed to make it easier for the government to do so without challenge, and have even agreed to accept the blame themselves. That’s a ‘principle’ the like of which has rarely been seen before.

Are we there yet? How do we know?

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Yesterday, Prof Richard Murphy posted an article claiming that, by any reasonable analysis, the UK now has a fascist government. He’s not the only one to have suggested something similar recently. One of the problems with the word ‘fascist’ is that is has become a term of political abuse applied to those of a general ‘right-wing’ bent which has largely stripped it of any hard meaning, such that labelling the government as such isn’t necessarily helpful. It’s very difficult to define what fascism is, as this lengthy piece demonstrates, because people who are regarded as ‘fascists’ in the past seem to have had a wide variety of different beliefs, and those beliefs weren’t fixed either.

What we can say is that there are certain common elements of states which we have historically labelled as fascist. Amongst those are a belief in the superiority of one nation or group, an authoritarian approach which seeks to subordinate law and the judiciary to the executive, over-riding parliamentary democracy, control of information, and demonisation of ‘others’. All of those are currently in evidence in the UK to an increasing extent. Another common characteristic is the ‘strong leader’ taking on the role of ‘national saviour’, but in fairness I doubt that anyone would put Boris Johnson in that category. He may harbour his own delusions here, but he isn’t an electrifying speaker and doesn’t possess any clear or consistent message to promote, even if he were capable of articulating it. He’s emerged as more of an incoherent bumbler than even his biggest enemies suspected would be the case. Perhaps the ‘strong leader’ is not such a requirement after all if the leader has the right people around him; there’s plenty of evidence that Cummings believes in the natural genetic superiority of some people (mostly himself) and that the bigger the lies, the more they’ll be believed.

It is, though, the trajectory rather than the current state which is the more important. The demonising of immigrants is nothing new, but the attacks on the judiciary and the stated objective of exempting the government from any form of accountability in the courts are new, as is the wilful contempt of international agreements. Labelling solicitors doing their jobs and protecting their clients under the laws of the land as ‘activist lawyers’ shows a disregard for the rights of individuals, as does the proposal to opt out of the human rights convention. Perhaps the most insidious of all is the way in which the public are not only increasingly inured to abrupt policy changes, usually announced outside parliament and without consultation, but also encouraged to buy in to an aggressive and punitive attitude towards those who don’t conform to whatever the latest rules are (unless those not conforming are in any way part of the government, of course).

One thing which history does teach us is that authoritarian regimes don’t always suddenly come to power overnight: there’s a process involved. And when there are a series of small changes, it becomes easier to accept each one individually and impossible to know when a point of no return has been reached. This was summed up rather well, I thought, by an unnamed Tory MP and ex-Minister who said that he has a speech resigning the Tory whip written and ready in his top drawer and that his colleagues are waiting for some sort of ‘final battle’ with Cummings adding, “But history shows there isn’t one final battle. It’s a series of capitulations.” That ‘series of capitulations’ on issues which are seemingly individually small is the biggest danger to what remains of our freedom and democracy. The only people who can halt the process at the moment are the Tory MPs in the House of Commons. It is said that there might be 20-30 Tory MPs prepared to vote against the proposal to breach international law; but with 365 Tory MP’s in the Commons, that would still mean that there are more than 320 prepared to vote in favour of international lawlessness, a fact which even traditional Conservatives now outside politics find hard to believe. Either those 320 have fully bought into the process themselves, or else they’ve already made too many capitulations to be able to stop. I’d like to believe that there are more honest and reasonable people in the Tory ranks, but – in another characteristic of an authoritarian regime – Johnson has already purged them. If a deliberate act of lawlessness isn’t enough to flush out those with reservations, it is hard to see what might be.

Strange outcomes

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The nomination of the Counsel General as Brexit Minister raises a number of questions, not least about the definition of a ‘minister’.  Given that Brexit is not a devolved issue; that he has no statutory responsibilities in the role; and that he will not be taking any decisions, the title ‘minister’ looks more than a little out of place.  He looks more like a monitor to me.  That’s by the by though; the criticism of the appointment seems to boil down to two issues.

The first is that it creates a potential conflict of interest, in that as Counsel General he is charged with giving impartial legal advice to ministers and can hardly give impartial legal advice to himself.  I’m not convinced on this one.  In the first place, if he really does have no decisions to make in the role, what exactly would be the purpose of any legal advice that he gave himself?  But secondly, I find the idea of an expectation that a politician appointed to a political post as a member of the Welsh Government by the First Minister would give entirely impartial legal advice to the government of which he is a member to be a strange one.  Yes, there are aspects of his role which require him to act independently of the government, and he is duty-bound to uphold the law; but that is not the same as saying that he must be politically neutral when it comes to policy issues.  There are sound political arguments both for and against him combining the two roles, and whether it is a ‘good’ thing or a ‘bad’ thing is an entirely legitimate topic for political debate between parties.

The second is that it is in direct conflict with the primary legislation establishing the role of Counsel General which specifically requires that the incumbent shall not be a minister.  Arguing that he isn’t really a ‘minister’ because he has no duties or responsibilities is an attempt to create wiggle room around the legislation (although it would have been much easier to give him some other title), but it looks more like an open-and-shut case to me.  What’s curious, though, is the politics of it.  This restriction on a dual role isn’t anything which the Assembly has discussed and voted on, it’s a result of primary legislation in Westminster.  It’s a rule imposed on the Welsh Government and the National Assembly from London, in effect.  And I find it strange that it’s a unionist party trying to find a creative way around the restriction, whilst those who are nominally independentistas are demanding total compliance with the letter of the imposed law.  Politics produces some odd outcomes on occasions.

Ethics and the law

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The revelation that the rich and powerful use tax havens to shelter their wealth from the taxes faced by the rest of the population is about as surprising as a revelation about the Pope’s religious affiliation.  Of course those who own the wealth take steps to protect that ownership; they always have.  But that doesn’t mean that there are no surprising aspects of the affair.

I wouldn’t expect people such as the monarch to be personally managing their own finances; the real decisions are taken by the lawyers and advisors who oversee the day to day issues.  But I would expect those advisors to have been given some sort of steer on the way in which they should behave, and three general directives strike me as being key to such a steer:

·         Get the best returns possible,

·         Make sure that everything is legal, and

·         Don’t do anything that would cause embarrassment if it became public.

It is in relation to the third of those points that there has been a failure, and three possible reasons occur to me for that failure:

·         The steer given to the advisors didn’t cover that point,

·         It did cover that point, but the advisors ignored it, or

·         It simply didn’t occur to anyone that a perfectly legal investment would cause any embarrassment.

Whilst I can’t entirely discount either of the first two, it is the third which seems to me to be likeliest; and it is in line with the defence generally being presented (and emphasised again and again in the media), namely that ‘there is no suggestion of any illegal activity’.  It raises the question, though, about whether we expect the richer members of society to exercise any moral or ethical responsibility, or whether compliance with the law is considered adequate.  It’s quite clear to me that those involved in this whole affair consider that their responsibility starts and ends with that which is legal; they have effectively outsourced their ethical responsibility to the legislature.  If the legislature does not explicitly prohibit something, then it’s acceptable.

At one level, that abdication of responsibility is deeply depressing, but at another it actually provides an opportunity.  It’s almost an invitation to the legislators to take on the responsibility and outlaw anything which looks like an attempt to avoid taxation or otherwise outrages the wider public.  All we need to do is to find enough legislators with an operational financial moral compass.  That's the part which might prove difficult.

Laws and legitimacy

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At the heart of events in Catalunya is a difference of opinion about the legitimacy of laws and constitutions.  The legitimacy of the position taken by the central authorities in Madrid stems from the Spanish constitution, which declares Spain to be an indissoluble whole, and the legitimacy of the position taken by the independentistas in Catalunya stems from the results of the last elections and a democratic vote in the Catalan parliament.  And from the perspective of outsiders, those supporting Madrid do so on the basis of upholding the law and territorial integrity of Spain, whilst those supporting the independentistas do so on the basis of both the democratic legitimacy of the Catalan parliament, and the wording of the UN charter, which guarantees the right of all peoples to self-government.

But one of the problems with the UN Charter is that whilst the wording is clear enough, the definition of ‘peoples’ is not; and a declaration of the rights of a ‘people’ to independence depends entirely on how we define a ‘people’ in the first place.  One of the disputes between the authorities in Madrid and those in Catalunya (and in other ‘regions’ of Spain, come to that) in recent years is whether Catalunya is a nation (as the Catalans would prefer) or a nationality (as Madrid insists, on the basis of the argument that Spain is one nation).  The implicit assumption behind that is that a ‘nation’ has rights which a ‘nationality’ does not.  Whilst the UK does not have the same debate about the precise wording, the same conflict exists under the surface, it’s just that ‘nations’ have different degrees of legitimacy.  So the UK Government is quite relaxed about using the same word (nation) to describe both Scotland and Wales on the one hand and the UK on the other, it is clear from their words and actions that they see them as two different kinds of ‘nation’. 

In both cases, the underlying question is about what a nation is and who defines it.  In the case of Spain, clearly the centre believes that it and it alone can define what is a nation, and that definition of nation can and should be imposed on all within its boundaries.  I suspect that there are some in the UK who would really like to be able to take a similar approach.  But nations are a human construct, and largely a subjective one at that.  People don’t consider themselves British or Spanish because the government insists that that is what they are; their self-identity is based on experience and history, and there are probably as many definitions of what it means to be Welsh, for instance, as there are people who claim to be Welsh.  And the same is true for any other identity.

The bigger question for me is why the question of identity or nationhood has any relevance at all here.  If the majority of the people in a particular country/region/area want to take control of their own affairs, why should it matter one iota whether they define themselves (or are defined by others) to be a ‘nation’ or a ‘people’ or not?  It seems to me that that is a wholly artificial barrier to the exercise of sovereignty by those to whom it belongs.  Ultimately, the right of any government to govern the people in the territory it delimits as belonging to it depends on the consent of those people; the right of the UK government to govern Wales, for example, cannot depend on the consent of those living in England, it can only depend on the consent of those living in Wales.  (And, by the same token, the right of the Welsh government to govern, say, Ynys Môn depends on the consent of the residents of that island – but that’s a subject for another post.)

And that goes to the heart of the current crisis in Catalunya.  Had the central authorities allowed the referendum to take place, and played a full part in it, putting their case before the people of Catalunya, opinion polls in advance suggested that there was at least a fighting chance that they would gain the continued consent of the Catalans, for a while at least – as happened in the Scottish referendum in 2014.  But effectively, they’ve simply declared that they don’t need that consent; they have the right to govern without it.  Ultimately, that is probably the best way to lose much of the consent which previously existed.  And it underlines that basic point that, in a debate of this kind, relying on a purely legalistic interpretation loses more hearts and minds that it wins.

Those who argue that law, and adherence to law, are a vital part of modern society are right in principle; but underpinning all law is legitimacy, a much vaguer concept, and that legitimacy always depends on the consent of the governed.  Failure to recognise that is a feature of dictatorship, not democracy.

The people will decide

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I can’t remember the exact date, but sometime in the late 1970s I once met the founder of Convergència Democràtica de Catalunya, Jordi Pujol, who later became the leader of the Generalitat in Catalunya.  It was not long after the death of Franco, and it was still illegal for anyone even to advocate the idea of independence from the Spanish state.  That, he told me, was the reason that Convergència at that time argued for more autonomy, rather than for independence.  However, others always saw him, until the latter part of his period in government at least when he gave up on the idea of progress within the Spanish state, as more of a natural federalist than an independentista.  So, whether his commitment at that time, and for many years thereafter, to building a federal Spain was down to principle or pragmatism may well be open to debate, but it has become largely irrelevant in the context of the twenty-first century.  Things in Catalunya have moved on (in large part because of the actions of the Spanish central authorities in amending the statute of autonomy in 2010) and independence, rather than federalism, is now the mainstream of debate.

As Syniadau posted yesterday, the Catalan Parliament – in which an overall majority of the members were elected on a platform calling for independence – voted on Wednesday to proceed to hold a referendum on 1^st October.  The central authorities in Madrid have been quick to denounce this as an illegal act and have promised to prevent it happening.  Whether they will succeed or not is an open question – Syniadau argues cogently that they are unlikely to be able to prevent it taking place, and that the likeliest outcome, as things stand, is a declaration of independence within days after the votes are counted.

Strictly speaking, there is no doubt that the central authorities are correct in arguing that the move is contrary to Spanish law.  The Spanish constitution makes it clear that Spain is a single and indivisible whole and that no part has the right to secede.  Things have improved since that meeting with Jordi all those years ago, in the sense that it’s no longer illegal to advocate independence, but the only legal way to achieve it involves first persuading the rest of Spain to approve a change to the constitution.  It’s an impossible barrier – but that was always the intention.  That leaves a political movement which has won the argument in Catalunya itself, and has an electoral mandate to move forwards, with little choice.

I’ve argued in the past that I can devise no satisfactory objective definition of nationality.  Nationality is in essence both subjective and fluid; it changes over time.  And sometimes people can feel that they are members of two or more overlapping nations at the same time.  Some independentistas deny that – despite it being the everyday reality of most of the people around us – and demand that everyone choose one, and only one nationality.  That seems to me to be a futile and self-defeating quest.  But there is another point to this as well – whether defined objectively or not, is nationality the only basis for deciding whether the people living in a defined geographical area have the right to govern themselves or not?  I don’t see why it should be, and in the context of Catalunya, it doesn’t matter whether the people see themselves as Catalans, Spaniards, or a bit of both – if they decide on self-determination, who has the right to stop them?

It’s an issue which goes to the heart of what ‘sovereignty’ is and where it resides.  For those of us who believe that it belongs to all of us, the right to self-determination is one which cannot be denied once the majority desire it.  The Spanish authorities start from the perspective that ‘the law is the law’, and as a result, no part of the whole has any rights unless the rest of the whole agrees to them.  It’s an unbridgeable gulf in perceptions, which is why all attempts at negotiating some other way forward have failed.  It doesn’t look like it will be an easy ride, but the decision is now going to be taken where it should be taken: by the people of Catalunya themselves.

Mob rule

Tweet The proposal put forward last week by the Public Accounts Committee that those who sell aggressive tax avoidance schemes should be ‘named and shamed’ is likely to prove a popular one.  Few of us have much time for those who seek to avoid ‘paying their dues’.  But although I have as little sympathy for them as do most other people, I’m still more than a little uneasy about the idea of officially-backed public vilification.

Like it or not (and I don’t), the reason that there are people prepared to develop and sell such schemes is that there are others who are keen to buy them.  In this case, the sins of the purchasers are at least as heinous as the sins of the sellers.  Besides, none of them are actually doing anything illegal; they are merely using an excessively convoluted tax code to their own advantage.  That may be immoral, in the eyes of many; but it ain’t illegal.

But who sets the standards for morality?  It’s clear that parliament sets the standards for legality (leaving aside the question of being able to abide by those standards themselves!), and for those things declared illegal, the full force of the law can be used against perpetrators.  Public opprobrium is simply a bonus in those cases.

But once we start giving the green light for the media and others to start the opprobrium where there is no illegality, merely a transgression against an unwritten and largely arbitrary moral code, where does it end?  It’s a form of mob rule; and officially sanctioning it makes it uncomfortably similar to some aspects of the former totalitarian states.

Rather than encouraging a process which they are unlikely to be able to control once unleashed, our elected representatives would be more gainfully employed re-writing – and simplifying – the tax code; removing all the little complexities which create the opportunities to avoid tax.  Making tax avoidance schemes illegal, and dealing with the perpetrators under the law, might not be so populist in the short term, but it’s surely more effective in the long term.

Never mind the facts

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I’ve referred to the Beecroft report previously.  The Prime Minister asked Beecroft, a venture capitalist, to review employment laws and come up with some suggestions for cutting red tape, which Beecroft duly did.  The main thrust of his idea of cutting red tape seems to have been whittling away hard-gained employment rights in the name of flexibility.

From earlier reports, most people will have assumed that there was at least some basis for his claims that he was putting forward the views of ‘business’ in general; but it seems from this report that was a wildly inaccurate conclusion.  In fact, the recommendations seem to have been put forward on the basis of what he and a few of his (presumably like-minded) mates think.

He didn’t have time to do any research or investigation into what businesses in general might think, so he had a chat with a few people and then sat down to write his report.  And, on such a flimsy basis, the government is proceeding to implement the bulk of his recommendations.

But then, if you think – as he said he did – that the case for making it easier for small firms to hire and fire people is ‘self-evident’, then what need is there for any objective evidence?  And why should anyone expect the PM to require any more evidence than that?

Weeding out the incompetent

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Most people starting a new job know and understand that there is some sort of ‘probationary’ period, during which their new employer can sack them if they don’t prove themselves.  It’s easy to see why employers want such a condition; judging people on the basis of an application form, cv, and interview is never going to be as effective as judging their actual performance.  And it’s not an unreasonable condition.

But how much more protection than that do competent and effective employers really need?  To listen to some business organisations, the answer is lots.  What they really seem to want is to be able to hire and fire at will, so that they have maximum flexibility with no come-back; the employees are just a resource like any other. 

Sadly, the UK Government has been listening to such views, and has proposed extending the period during which employees are barred from bringing a claim for unfair dismissal from 12 months to 24.

(In passing, it’s interesting to note that the announcement was made by the Chancellor of the Exchequer – since when did he take on the responsibility for employment law?)

In effect, the government are proposing to double the period during which employers can legally sack someone unfairly.  It amounts to condoning unfair action by employers as long as it happens within the first two years of employment.

Why should we tolerate ‘unfair’ dismissal at all?  If the dismissal is fair, then the employer will win any tribunal case.  This proposal bans the reasonable cases as well as the unreasonable ones. 

The argument seems to be that there is a cost to the employer of having to defend any action, and abolishing the right to bring a case will therefore save businesses time and money – but there are surely better ways of weeding out the vexatious cases than simply banning all cases?

I can’t help wondering why anyone would conclude that the way to protect employers from unjustified claims is to abolish the rights of everyone, and simply allow unfair behaviour to go unpunished.  Allowing people to ignore health and safety rules for two years would be a good way of reducing their administration costs as well, but it doesn’t make it a good idea.

It’s another example of the thinking that the way to make business competitive is to give employers more freedom to treat employees as they wish.  Competent managers don’t need that sort of freedom.  We’d be better off ensuring that those running businesses have the competence and skills to do so, and to ensure that they treat employees fairly in the process, rather than simply licensing incompetence.

Make haste slowly

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The Government’s proposal to increase the top speed limit to 80mph will no doubt appeal to that section of the population which regards adherence to laws on speeding as being optional.  It tends to be the same group which regards the use of speed cameras as somehow ‘unsporting’, as if the whole thing is a game in which the main object is not to abide by the rules, but simply to avoid getting caught breaking them.

I worked with someone once who was always late for meetings, because he already had nine points on his licence and couldn’t afford to drive fast enough to arrive on time.  ‘Set out earlier’ was the thought that went through my mind; but the view that speed limits are somehow an unfair and unnecessary restriction on normal business is not unlike that being expressed by the current government.

There almost seems to be a sort of collective belief amongst some that speeding – like taking home the office stationery – isn’t a ‘real’ crime.  ‘Proper’ crimes have to have obvious victims, and an apparently ‘victimless’ crime should therefore be treated differently.  In reality, speeding isn’t victimless, and never has been - but it is true that the ratio of crimes to victims is different.  Whilst there is a victim in every single case of robbery, the same is not true for speeding.  Because the overwhelming majority of instances of law-breaking on the motorways do not have a victim at all, the misguided generalisation can gain credence.

The government’s thinking appears to be rather muddled, to say the least.  On the one hand, they argue that there will be huge economic advantages in allowing people to drive that little bit faster; on the other they argue that the law as it stands is unenforceable, since half the drivers are already exceeding the limit anyway.  I find it hard to reconcile those two statements, unless the intention in reality is to increase the effective, enforced speed limit from 80 to 90mph.

I’m not convinced by the argument that so many people break the law anyway, that it’s unenforceable.  It is, again, based on the idea that there are different degrees of crime; it’s certainly not a suggestion that would be made for most other breaches of the law.  Widespread disregard of a law is not, in itself, an argument against the law, particularly if a major part of that disregard is based on an unwillingness by the authorities to enforce the law.

Nor am I convinced by the argument that it will enable people to get to their destination sooner.  Most of the motorway network is so congested that theoretical top speeds are rarely achievable anyway.  Besides, work done by governments over many years has shown that total road capacity can best be increased by maintaining a lower and more consistent average speed – it’s what has led to the variable speed control systems used in places like the M25. 

And paradoxically, increasing the speed at which some travel could have the end effect of reducing the overall average speed of all motorists – leading to an increase in average journey time rather than a decrease.  The best overall average speed for all seems to be achieved when the variation between the speed of different vehicles is reduced, not when the speed of the fastest is increased.

The one thing that no-one seems to dispute is that the fuel and pollution cost of the proposed increase is significant, and will make it harder to achieve agreed emissions targets.  For a government which said it was aiming to be the greenest ever, it’s a major step away from that aim. 

It may also affect the balance of attractiveness between public and private transport.  Although the actual impact on journey times is likely to be minimal, that will not prevent people from believing that they can achieve a journey in a shorter time, and choosing to use their cars as a result.  That belief may not be rational, but that doesn’t stop people taking decisions on the basis of it.

All in all it looks more like an attempt to be populist in order to gain the support of a particular section of the electorate than part of a coherent transport policy.

War on Safety

Tweet I'm sure that there will be some who welcome yesterday's news that the UK government is going to scrap the funding for speed cameras in England and Wales. I am not one of them. And the wording of the announcement was disingenuous to say the least.

What they've actually done is to cut the budget for road safety, and to describe that as 'ending the war on motorists' is stretching credulity more than a little. It's a populist turn of phrase of course, but I've never understood how using modern technology as a cost-effective way of enforcing the law and protecting the majority of road users from the irresponsibility of the few can be described as a 'war on motorists'.

I don't doubt that there are some motorists who feel aggrieved when they get caught because their speed has crept above the limit, but we have a stretch of road near us where we take our lives into our hands on a daily basis because an irresponsible minority think that speed limits and double-white lines only need to be obeyed if there is a visible police presence. Or a camera. We've had one car written off already (no serious injuries fortunately), and any number of near misses.

I worked for one organisation where meetings regularly started late because one or other participant already had 9 points on his licence (it was always a 'he') and couldn't afford to drive fast enough to get there on time. The idea of setting out earlier seems to be an entirely alien thought to that sort of driver.

It is entirely legitimate to campaign for changes in speed limits (in either direction), but I do not regard it as legitimate to campaign against enforcement of the law. Unenforced laws are simply pointless. Nor do I regard it as somehow 'unsporting' to use technology where appropriate as part of that enforcement.

I'm convinced that traffic enforcement cameras can and do save lives, and that we need more, not less. Ending the 'war on motorists' may turn out to be the start of a war on safety.